Friday, October 15, 2010

Texas: It's a Whole Other Country

Before I go on to talk about Todd Willingham and Hank Skinner, I need to do one more quick note about the opinions in Billy Wayne Coble's case from Wednesday.I say opinions, plural, because when I wrote about the Coble case (here) I focused on the majority opinion. You know, the one that said Richard Coons is a fraud and his predictions of future dangerousness, predictions which have sent dozens to death row and at least a couple of those to death, are wholly worthless but that even so Billy Wayne should be killed. What I didn't do was mention the concurrence which said, in essence,Sure Coons makes it up. But he's a psychiatrist and the fact that he has no basis for what he says doesn't matter. He's a psychiatrist which means he has powers beyond those of mortal man. And the defense never proved that his crystal ball gazing doesn't work.OK, that's not how Sharon Keller (what, you thought it was someone other than she-who-falsely-believes-herself-to-have-been-vindicated) actually put it. Here's what she said (footnotes omitted).

The evidence at trial—Dr. Coons testimony—shows that forensic psychiatry is a legitimate field, that predicting future dangerousness is within the scope of that field, and that using education and experience to assess future dangerousness is a proper application of the principles involved in the field. Notably, appellant has presented no evidence to the contrary. The Court faults Dr. Coons for failing to cite “books, articles, journals, or even other forensic psychiatrists who practice in this area” to substantiate his methodology, while acknowledging that Dr. Coons is “a genuine forensic psychiatrist with a lengthy medical career.”But appellant did not introduce any “books, articles, journals, or even other forensic psychiatrists” to testify that, contrary to Dr. Coons’s testimony, Dr. Coons’s experience-based method of evaluating future dangerousness is inappropriate.

Except that the law really is clear that the proponent of the testimony (that's the State of Texas) has to prove it's reliable. Coble's lawyers didn't have to prove it was bullshit. Keller, gets it exactly backwards. But then she had a real fear: If fraud's like Coons are stopped, maybe Texas won't get to keep killing so many people.

Damn, and after she shut the courthouse.

* * * * *

While Billy Wayne Coble moves one step closer to being killed by the powers that be in Texas, Todd Willingham, who was killed by those powers, is having his case reviewed by a court of inquiry headed by Texas District Judge Charlie Baird. It's a special Texas procedure to determine if Willingham was innocent.

After delays, the hearing got underway Thursday and lasted, according to press reports, maybe three hours. Two widely recognized experts in the science of fire and arson testified. Gerald Hurst explained that it's not theoretically possible ever to rule arson out as the cause of a fire, John Schwartz, in the Times, reported.

The judge then asked if “there’s nothing in the evidence you’ve seen here that suggests arson.”

“That’s correct,” Dr. Hurst said.

After Hurst, the judge heard from John Lentini who

ridiculed critical testimony at the trial that 20 factors, including burn patterns on the floor and cracks in the windows, proved that Mr. Willingham spread accelerants to fuel the fire.

No such chemicals were found in the house, Mr. Lentini said. Much of the analysis of Manuel Vasquez, the state fire marshal in the Willingham trial, “didn’t even meet the standards of 1991,” a time that Mr. Lentini characterized as having “a wretched state of the art.”

The current fire marshal, Paul Maldonado, stands by the work of the original marshals in the Willingham case, which Mr. Lentini said he found mystifying.

Baird was prepared to hear from the Governor, who ignored Hurst's analysis and signed off on Willingham's execution, from the current fire marshall, even from Willingham's wife who said the other day that Willingham confessed to her (something she's denied under oath on other occasions). All declined to appear.

But wait. Just as things drew to a close, a three-judge panel of the court of appeals in Austin ordered Baird not to rule. The Navarro County District Attorney, intent on preventing the court of inquiry, convinced the court to call a temporary halt.

Arguments for why Baird should be allowed to rule are due October 20.

But really, there's not much to say.

It really is clear that there's simply no evidence Willingham set the fire that killed his children. He may have been a terrible person (or not); he may not have cared that they died (or he may have); but one more time, in boldface, there's no evidence that he killed his kids. None.

Of course, that won't mean anything to those who think death is all that matters. Schwartz quotes our friend Kent Scheidegger on what will happen if Baird gets to rule and says Willingham was innocent.

“It’ll be trumpeted on the Death Penalty Information Center site,” he said, referring to a group that opposes capital punishment. “Nobody on the other side of the aisle is going to give it any credence.”

For they who believe, evidence only counts if it points to guilt.

And you know, they've still got a flat earth and creationism and the Loch Ness monster.

* * * * *

Finally, up in Washington on Wednesday, the Supremes heard oral argument (transcript here) in Skinner v. Switzer. Skinner is Hank Skinner. He's the guy who wants Texas to let him have access to evidence to test it for DNA. Texas says no, we just have to kill you.

In the course of an hourlong argument at the Supreme Court on Wednesday about a death row inmate’s quest to test DNA evidence, the justices asked neither of the questions that people without legal training might have thought crucial: Why won’t Texas prosecutors consent to the testing? And could the results show that the inmate, Henry W. Skinner, is innocent of the triple murder that sent him to death row?

Actually, they did sort of ask the second of those questions. And Rob Owen, who represents Skinner, sort of answered. Of course Skinner hopes that DNA tests would show he was innocent. It's just that those questions aren't up yet. The immediate issue is whether Skinner has a right to ask the federal court to say that the Texas statute which says he can't get the material for testing is unconstitutional. You might want to read that again. Skinner's not asking the Supremes to order the testing. He's not asking the Supremes to say that the Texas statute that says he can't get it is unconstitutional. He's asking the Supremes to let him ask a lower federal court to decide whether the Texas statute is unconstitutional.

Back in March, Skinner came within an hour of being executed before the Court granted a stay. Now, Anthony Kennedy wonders whether they should have.

Well, we don't grant a stay in order to decide a question. We grant a stay because of the likelihood of success on the merits. And that goes to the sentence. And now you are telling us that your attack doesn't go on the sentence. I don't see why we don't just lift the stay, under your own view of the case.

When Kennedy is suggesting that the Court should drop the case and let your client be killed, that's a really bad sign.

* * * * *

Let's review:

Billy Wayne Coble - Sentenced to die based on meaningless, unreliable evidence, but close enough for government work

Cameron Todd Willingham - Executed for a crime there's no evidence occurred, but close enough for government work

Hank Skinner - Trying to prove he's innocent but it looks like he may have no way of getting to court which he needs to do to get access to the evidence that, he says, would prove he's innocent.

It is alleged that when Davy Crockett was not reelected to Congress, he said

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.